Jurisprudence

The Supreme Court Could Not Have Timed Its Latest Attack on Unions Any Worse

Workers with megaphones and signs that read "RECLAIM LABOR DAY" and "HOT LABOR SUMMER."
Pro-union protestors march on Sixth Avenue on September 05, 2022 in New York City, including members of the Amazon Labor Union. Michael M. Santiago/Getty Images

Amazon workers in California’s Inland Empire planned to strike on Friday. They’re not alone: strikes are happening everywhere these days. It’s no surprise: workers across the United States are fed up with poor working conditions and unlivable wages amid ballooning corporate profits. Unfortunately, it’s also no surprise that the Supreme Court, an increasingly faithful backer of corporate interests, has just agreed to hear a case that might effectively kneecap workers’ right to strike.

The court’s move comes at a time when workers are striking in numerous industries all over the country. By the end of the summer, Starbucks workers had gone on scores of strikes in more than a dozen states. Last week, 50 Staten Island Amazon workers walked out, after a fire led to concerns about unsafe smoke-filled air. Rail companies’ obstinate insistence on punishing and inhumane schedules nearly drove the U.S. economy off a cliff last month, as workers came to the brink of a strike before President Joe Biden helped broker a tentative deal that temporarily pushed back any work stoppage. This week, the deal was rejected by members of one union, renewing the strike possibility. Nurses, factory workers, teachers, timber workers, mental health workers, and graduate workers have all recently struck or voted to authorize strikes.

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In the midst of all this labor action, the court earlier this month agreed to hear a case asking whether workers should have to face crippling lawsuits if they exercise their right to strike: Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union No. 174. Given the court majority’s recent history of extreme hostility to workers’ exercise of collective power, this development is seriously concerning. Everyone who cares about workers’ rights should be paying close attention.

Glacier is a Washington corporation that sells and delivers concrete, which hardens quickly if it is not constantly mixed. After the prior collective bargaining agreement between the company and its workers expired, and amid negotiations for a new contract, more than 40 Glacier workers went on strike.

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When the strike began, all the striking drivers left their trucks running so the cement in them wouldn’t dry out; turning off the ignition would not only have rendered the cement unusable, but also permanently damaged the trucks.

The company managed to empty the cement out of the trucks, and there was no harm to the vehicles or premises. But the company had made no contingency plans for back-up staffing, so it lost money because it had to dispose of the cement itself. Glacier sued the union in state court for damages based on the loss of the cement.

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This should not be a Supreme Court case. Workers have the right to strike under federal law, and economic harm to the employer is often an inherent part of striking. Federal courts have long recognized that allowing state-court lawsuits about damages caused by strikes would interfere with the rights protected by the federal National Labor Relations Act. The legal rule is called preemption: state courts, local courts, and other government bodies are blocked from hearing cases or enforcing laws that regulate conduct that is arguably protected or arguably prohibited by the National Labor Relations Act, because those cases belong before the National Labor Relations Board.

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There are exceptions to preemption. If striking workers commit acts of violence, vandalism, or wanton destruction of company property, such as by smashing equipment or setting a worksite on fire, that’s not within the bounds of federal labor law, and the state or state courts can act.

But these exceptions are limited. If employers could routinely file lawsuits against workers or unions for ordinary economic harm that’s inherent in the nature of a strike, workers’ right to strike would become meaningless in most instances, because striking would mean taking on the risk of being bankrupted by financially ruinous lawsuits.

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In the case of the Glacier strike, it’s ridiculous to say that what happened was akin to assault or vandalism. The harm to the cement was incidental to the strike; at most a day’s supply of product was lost—not company trucks or the work facility. Drivers didn’t take the trucks on a joyride to visit the Seattle Space Needle or use the concrete to build a giant rat sculpture art installation inside the company lobby. Instead, they returned their trucks to the jobsite and left them running specifically in order to preserve the concrete. The company knew it was in a tough negotiating moment in which a no-strike clause had just expired; if it had prepared a backup plan, it could have preserved the cement. All of this is why the Washington State Supreme Court rejected Glacier’s lawsuit against the union as preempted by federal law.

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If the Supreme Court allows an employer to sue workers or their union in state court because a strike cost a company a day’s worth of perishable products, the implications for the right to strike could be staggering. Many industries involve products that can spoil. Could any workers on the food chain—farm, factory, supermarket, restaurants—strike without facing devastating lawsuits from employers, based on spoilage of food if the employer has no contingency plans?

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Glacier also argues that the workers’ alleged strategic timing—striking in the morning after cement had already been mixed and before it was delivered—means they should be held liable for economic harm in the same way they would if they had committed acts of vandalism. If the court accepts this argument, the harm to the right to strike would stretch even farther. Would Papa John’s and Domino’s workers risk a lawsuit if they struck on Super Bowl Sunday? What if box store workers strike on Black Friday? Resort workers during spring break?

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A Supreme Court decision in Glacier’s favor would be a terrible blow for unions and for workers expressing their collective power. It would open the door to employers suing workers for a far wider range of routine economic losses resulting from strikes, and would make a mockery out of the right to strike.

It is entirely in character for the Supreme Court to grant review of this case in the midst of an historic wave of unionizing, when workers have gotten perhaps a little too assertive for the court’s taste. The court has done everything in its power in recent years to stifle workers’ exercise of collective power. Since 2018, the court allowed employers to force workers to give up class action rights, tried to thwart public sector workers’ ability to form strong unions, and held that a California law allowing unions modest time-limited access to isolated, vulnerable farmworkers on the jobsite was an unconstitutional taking from growers.

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There’s a flip side to this coin. Logically, a pro-Glacier decision could provide an opening for state courts—and states generally—to get more involved in labor matters, including sometimes in ways beneficial to workers. If the court were to weaken federal labor law preemption, this could open the door to workers or unions bringing state lawsuits against employers, or pushing for state laws to impose additional punishments on companies that violate their rights. For instance, perhaps a worker fired for organizing her workplace could sue not just for backpay, but for punitive damages under state law. Could recognition of this logical outcome give the conservative majority pause in Glacier?

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It’s an argument worth making, but given the court’s recent history, it seems most likely that the court will use the Glacier case to weaken labor law preemption in a way that harms the right to strike while carefully foreclosing any possibility that workers could benefit.

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That the outcome of this case feels like a foregone conclusion is one more example of why we need court reform. It also shows the need for labor law reform, like the PRO Act currently in Congress. Almost half of surveyed private sector workers would like to join a union, 71 percent of Americans support labor unions, and yet only 7 percent of private sector workers are in unions, primarily because current law creates way too many obstacles to workers who want to unionize.

If the Court does attack the right to strike, Congress could fix the problem by amending the National Labor Relations Act—but only if Congress is populated by people who care about protecting workers’ rights rather than rejoicing in their demise.

The strike wave that is sweeping the country shows that when they can, workers are often willing to take huge risks to fight for better jobs for themselves and their coworkers. The Supreme Court is likely, again, to try to thwart this energy and courage. Our country’s working people deserve so much better.

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